The Obama administration says they are not defending the merits of DADT, but instead arguing that the defense secretary has sole discretion over its rules on separation pay - something they assert the court cannot determine or revise.

“I would consider this to be an unenviable argument to have at this time,” Cook Miller told the government’s attorney later.

The suit was filed by the ACLU on behalf of an Air Force Staff Sgt., Richard Collins, who was honorably discharged in 2006 when two people who worked with him saw him kiss his boyfriend in a car 10 miles from his Air Force base. According to the lawsuit, the sergeant was off-duty and was not in uniform at the time.

Instead of the $25,702 he expected, Collins received only $12,351 upon his dismissal.

The Defense Department has a list of conditions that trigger automatic reductions in severance pay, including homosexuality and discharge in the interest of national security.